June 11, 2002

I guess it had to happen sometime. Following Donna Wentworth’s challenge, my rather shallow response, Ernest Miller’s response and now George Scriban’s, I’m going to try to continue the discussion below. So, no new links, but rather my first stab at trying sound as intelligent as Donna seems to think I am <G>

(1 set of thoughts below)

So, Donna’s original challenge was essentially, how to construct a compelling defense of fair use that will reach the public, rather than those of us who have been following this topic - i.e., how to avoid preaching to the choir?

After rereading Lawrence Lessig’s interview in Reason, I found one possible rhetorical point - Prof. Lessig points out that one construction of copyright is a right to exercise a “monopoly” and extract monopoly rents; if so, then this is distinguishable from conventional property, if only because monopoly is generally considered a bad thing that is remedied by governments to promote social welfare.

Another point is to consider that a truly rivalrous application of copyright (say, coming up with a great song, but never releasing it/playing it/writing it down) immediately renders the intellectual property per se worthless - at least from an economic perspective. In fact, value is only achieved through the application of other effort - public performance, display, etc. (This is what Bowie was essentially saying in the article that I suggested to Donna the last time around.)

Moreover, as Ernest Miller states, the notion of an exclusive right to make a copy as an element of copyright is only a century old, and is thoroughly entangled in exceptions to cope with the issues that he describes - much of the modern methods for extracting rent from copyright is wrapped up in the making and distribution of copies, and it is the kind of copying that probably distinguishes fair use from other kinds of copying.

In Digital Copyright, Jessica Littman tries to distinguish commercial from noncommercial copying (see this and this if you haven’t read the book) as the basis for cleaning things up, but I think that’s too broad a brush. In particular, it opens the owner of certain copyrighted goods to altruistic sabotage through noncommercial giveaways. However, I think that this is the place where the debate may end up.

The problem, then, is what is a copy? The case law here is pretty much what has been used to introduce the notions of copyright to law students in the first place - player piano rolls are not copies of sheet music, therefore they are noninfringing, etc. And, frankly, many point to the CONTU white paper (see pages 65 et seq.) as the point where the construction of “copy” started to lose all reasonableness in the digital realm.

OK - so that was machines; but what about people? Was Mozart’s ability to play back what he heard once infringing? Playing it back in a satirical way? In a better way (a la the movie Amadeus)? Or in a way to illustrate the defects in the song? What about the lesser ability of being able to remember the song, but not being able to output it, or only to hum a few bars? There have been several humorous pokes at the problem (see this [BBSpot], this [O'Reilly Net], this [Modern Humorist], this [CNet] and, perhaps more horror than humor, The Right to Read and this variant), but the scary part is that the humor cuts pretty close to the bone when we look at the implications of what is being proposed.

In fact, it may be that reductio ad absurdum (sp?) may be the effective strategy; particularly if it can be backed up by a credibly applicable technology that shows it up. We have been told that DeCSS is not a legal tool, and the general public seems to have bought it. (despite Touretsky’s DeCSS Gallery - do you own a t-shirt?) But what about a magic marker? A Reuters news article? If these are formally in violation of the law, isn’t there something wrong with that law? That was clearly Prof. Felten’s objective when he withdrew his paper; unfortunately, the RIAA has attorneys who were smart enough to back down. So far, it appears that the cases that are being taken up are, like Donna points out, painting the wrong picture. So, what can be mooted up to make the point - in the same vein as the Vietnam-era argument that, by discussing plans to kill a bald eagle meant that, as a Federal felon (albeit unconvicted) you could not enter the Armed Services.

Can we define a credible act, accessible to the everyday person, that seems to be fair use, but violates the DMCA or copyright in general? For example, Litman regularly cites the fact that many small restauranteurs regularly challenged the licensing fees collected by ASCAP/BMI for radios played in a dining room, because they just couldn’t believe that doing so meant that monies were owed. If we can find one, that may be the most effective way to illustrate the problem. Now, the hard part………